Witherspoon v. Mercury Freight Lines, Inc., 71-2418.

• Decision Date: 20 March 1972
• Docket Number: No. 71-2418.,71-2418.
• Citation: 457 F.2d 496
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: McKinley WITHERSPOON, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. MERCURY FREIGHT LINES, INC. and Local No. 991 of the Teamsters, Chauffeurs, Warehousemen and Helpers Union, Mobile, Alabama, Defendants-Appellees.

457 F.2d 496 (1972)

McKinley WITHERSPOON, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. MERCURY FREIGHT LINES, INC. and Local No. 991 of the Teamsters, Chauffeurs, Warehousemen and Helpers Union, Mobile, Alabama, Defendants-Appellees.

No. 71-2418.

United States Court of Appeals, Fifth Circuit.

March 20, 1972.

Frankie Fields Smith, Mobile, Ala., Jack Greenberg, William L. Robinson, James M. Nabrit, III, Morris J. Baller, New York City, for plaintiffs-appellants; Jonathan Harkavy, New York City, of counsel.

Frank McRight, Mobile, Ala., Thomas M. Ammons, III, Mobile, Ala., for appellee Mercury Freight Lines, Inc.; Armbrecht, Jackson & DeMouy, Mobile, Ala., of counsel.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

GODBOLD, Circuit Judge:

This case concerns racially discriminatory employment practices of a motor carrier, violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and similar to the practices held discriminatory in Bing v. Roadway Express, Inc., 444 F.2d 687 (5th Cir.1971), and its predecessor, Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). The District Court, in a decision handed down prior to Bing and Jones, held the carrier's policies not discriminatory. Those two cases require reversal.

No black has ever worked for Mercury as a long haul driver, even as an extra. As in Bing, the carrier has maintained a policy, albeit somewhat different in form, under which black city (i. e., local) drivers are "locked in" to their positions with no real opportunity to transfer to the more highly regarded and sought after position of long haul or over-the-road driver. Also blacks applying from outside the company for long haul driver places are not hired. While blacks are excluded, whites are hired as over-the-road drivers, both from outside the company and from the ranks of white city drivers. Blacks applying for over-the-road positions, both by transfer from city driver status and as new employees from without the company, have not been specifically turned down—they just never heard from their applications, and the record amply demonstrates that the applications never received meaningful consideration, and in some instances none at all.

The plaintiff made out a prima facie case of discrimination by the above evidence. The burden of proving absence of discrimination moved to defendant, which attempted to explain on the ground of business necessity, stating that long haul drivers must have personalities, age, family, and health backgrounds different from city drivers. But these factors are not shown to have been applied to the plaintiff or to other black applicants. Rather it appears that their applications were never given genuine consideration under any standards.

The decision of the District Court must be reversed and the cause remanded for further proceedings. The District Court is directed to define the scope and depth of the class of which the...